(BIVN) – The Hawaiʻi Supreme Court on Friday affirmed an April 2018 circuit court ruling that the State of Hawaiʻi breached its trust duties in regards to its Pohakuloa Training Area lease. 

Clarence “Ku” Ching and Mary Maxine Kahaulelio took the Hawaiʻi Department / Board of Land and Natural Resources and chair Suzanne Case to court in 2014 after the state was unable to provide any records that DLNR was “ensuring compliance with this term of the 1964 lease” to the United States military. After the circuit court found in their favor, the state appealed the ruling. 

The Hawaiʻi Supreme Court opinion, written by Justice Pollack, stated in its introduction:

We hold that an essential component of the State’s duty to protect and preserve trust land is an obligation to reasonably monitor a third party’s use of the property, and that this duty exists independent of whether the third party has in fact violated the terms of any agreement governing its use of the land. To hold otherwise would permit the State to ignore the risk of impending damage to the land, leaving trust beneficiaries powerless to prevent irreparable harm before it occurs. We therefore affirm the trial court’s determination that the State breached its constitutional trust duties by failing to reasonably monitor or inspect the trust land at issue.

Here is how the Hawaiʻi Supreme Court decided on the various circuit court rulings:

• Denial of the State’s motion to add the United States as a party: Affirmed
• Denial of the State’s motion to dismiss the case for failing to join an indispensable party: Affirmed
• Denial of the State’s motion for summary judgment: Affirmed
• Finding that the State had breached its trust duties: Affirmed
• Order requiring the State to undertake any activities not expressly stated therein: Vacated

As far as the circuit court order requiring the State to submit a plan that must include the following:

• Regular, periodic on-site monitoring and inspection of the leased PTA land and the United States’ compliance with relevant lease provisions: Affirmed
• The making of detailed reports for each such monitoring or inspection event: Affirmed
• A protocol of appropriate action in the event the State discovers an actual or apparent breach of lease terms, any condition or situation adversely affecting the PTA, unexploded ordnance debris, or any other foreign or non-natural item or contaminant: Vacated with Instructions to Render as a Non-binding Recommendation
• A plan or other assurance that any nonconforming condition likely caused by the United States be reasonably brought to pre-lease condition: Vacated with Instructions to Render as a Non-binding Recommendation
• A procedure to provide reasonable transparency to the Plaintiffs and the general public with respect to the requirements of the order: Affirmed
• If not already in existence, the institution of a contested case procedure adopted pursuant to HRS Chapter 91 for Plaintiffs or other members of the public to contest the State’s decisions in managing the PTA: Vacated with Instructions to Render as a Non-binding Recommendation
• The steps the State shall take to explore, evaluate, make application for, or secure adequate funding to conduct a comprehensive cleanup of the PTA: Vacated with Instructions to Render as a Non-binding Recommendation

The circuit court order requiring the State to execute the plan once it is approved by the circuit court was also affirmed.

The Pohakuloa lease is unrelated to the Thirty Meter Telescope permit, however TMT opponents say the State’s breach of its constitutional trust duties bolsters the need for them to “take things into [their] own hands”. In video released to the media by Puʻuhonua o Puʻuhuluhulu, Kahoʻokahi Kanuha said:

I wanna mahalo the Native Hawaiian Legal Corporation, and Uncle Ku Ching and Auntie Maxine Kahaulelio, who had been in a battle challenging the state and their mismanagement of Pohakuloa, which is down here not too far away from we stand at the base of Mauna Kea, they’ve been in the [] Court system for years, now, fighting this. And today, the Supreme Court ruled and reaffirmed that the state of Hawaiʻi has a duty to properly manage the lands in which it has been entrusted to manage and to control. And what the Supreme Court found today is that the state has again failed to uphold that duty. We know that this is an issue that has been ongoing. This is one of the many reasons why we stand here to protect Mauna Kea from the building of the Thirty Meter Telescope. Because, like Pohakuloa, the state has shown and proven – time and time again – that they do not have the ability to properly manage the lands that are supposed to be held in trust.

Kanuha noted that Ching was one of the original petitioners who opposed the permit to build the TMT, and that Kahaulelio was one of the kupuna arrested on the Mauna Kea Access Road in July. He then connected the state’s oversight of the Pohakuloa lease to the stand against the Thirty Meter Telescope, which is a project permitted by the state of Hawaiʻi.

“We are not willing to hope that maybe this time, for no good reason, maybe it just might be different. We are taking things into our own hands,” Kanuha said, because the state “cannot properly manage – or, perhaps, will not properly manage – our lands.”